Rajasthan High Court - Jodhpur

Shri Gurunanak Kanya Pathshala, Sgnr vs State & Ors on 17 May, 2013

Author:
Govind Mathur

Bench:
Govind Mathur

(1)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

ORDER

[1] S.B.CIVIL WRIT PETITION NO. 7134/2012
Seth G.L. Bihani S.D. Sr. Secondary School
Vs.
State of Rajathan & Ors.

[2] S.B.CIVIL WRIT PETITION NO. 5530/2012
Shri Gurunanak Kanya Pathshala, Sri Ganganagar
Vs.
State of Rajasthan & Ors.

[3] S.B.CIVIL WRIT PETITION NO. 5712/2012
Seth G.L. Bihani
Vs.
State of Rajathan & Ors.

[4] S.B.CIVIL WRIT PETITION NO. 9121/2012
Shri Aravansh Sr. Secondary School, Sri Ganganagar
Vs.
State of Rajathan & Ors.

DATE OF ORDER : 17.05.2013

PRESENT

HON'BLE MR. JUSTICE GOVIND MATHUR

Mr. Sanjeet Purohit, for the petitioner (s).
Ms. Minu Purohit on behalf of
Dr. GR Kalla, Government Advocate
Mr. Sudhir Tak, Government Counsel.
...
Reportable
BY THE COURT :

By communication dated 8.11.2011 the Principal Secretary

to the Government of Rajathan, Department of School &

Sanskrit Education (Group-5), Jaipur issued necessary

instructions to the Director, Elementary Education, Bikaner;

(2)

Director, Secondary Education, Bikaner and the Director,

Sanskrit Education, Jaipur relating to pay fixation of the

employees working with non-government educational institutions

in the pay-scales prescribed under the Rajasthan Civil Services

(Revised Pay) Rules, 2008 (hereinafter referred to as 'the Rules

of 2008'). The instructions so given are :-

(1)The pay fixation of teaching and non-teaching staff of

the non-government educational institutions in the Pay

Rules of 2008 be made w.e.f. 01.9.2006 in the same

manner as applied to the Rajasthan government

servants. The arrears accruing as a consequent to

fixation of pay in the Revised Rules of 2008 w.e.f. 2006

shall not be borne by the State Government. The non-

government educational institutions shall be liable to

make payment of such arrears from their own financial

sources.

(2) The pay of the employees of the non-government

educational institutions employed in State service as per

the provisions of Rajasthan Voluntary Rural Education

Service Rules, 2010 should also be fixed under the

Rajasthan Civil Services (Revised Pay) Rules, 2008 w.e.f.

01.9.2006, however, but in view of the undertaking

given by them as per Clause (vii) of Rule 5 of the

(3)

Rajasthan Voluntary Rural Education Service Rules, 2010

no liability to make payment of arrears shall be borne by

the State Government - may that be relating to pay,

selection grade, career progression or career

advancement scheme. The payment of such arrears

shall be borne by the non-government educational

institutions where the employee concerned was working

prior to joining State service.

In view of the instructions referred above, the non-

government educational institutions are liable to make payment

of arrears of pay, selection grade, career progression or career

advancement scheme to their existing employees as well as to

the employees who are now in employment of the State

Government as a consequent to application of the Rajasthan

Voluntary Education Service Rules, 2010. This batch of writ

petitions is preferred by the non-government educational

institutions to challenge the decision of the State Government

referred in the communication dated 8.11.2011.

To understand the controversy involved in these petitions,

it shall be appropriate to refer to certain relevant provisions and

other connected facts.

(4)

Rajasthan Non-Government Education Institutions Act,
:

To provide for better organization and development of education

in non-government educational institutions in the State of

Rajasthan, the Rajasthan State Legislature enacted "
Rajasthan

Non-Government Education Institutions Act, 1989
".
The Act
was

brought into force on 01.1.1993.

Chapter-III of the Act
pertains to aid, accounts and audit

relating to non-government educational institutions. As per

Section 7
of the Act, grant of aid by the State Government is

available to the recognized non-government educational

institutions. The may cover such part of the expenditure of the

institution as may be prescribed. The aid against salary of the

employees of an institution cannot be used for any other

purpose. The Sanctioning Authority may stop, reduce or

suspend aid on breach of any of the terms and conditions

prescribed for such grant.

Section 16
of the Act provides that the State Government

may regulate recruitment and conditions of service including the

conditions relating to qualification, pay, gratuity, insurance, age

of retirement, entitlement of leave, conduct and discipline of

persons appointed as employees of the aided institutions.

(5)

As per
Section 29
the scale of pay and allowance except

compensatory allowance with regard to the employees of aided

institution shall not be less than the staff belonging to similar

category in government institutions. For ready reference

Sections 16
and
are quoted :-

16. Power of the State Government to regulate
the terms and conditions of employment. - (1)
The State Government may regulate the recruitment
and conditions of service, including conditions
relating to qualifications, pay, gratuity, insurance,
age of retirement, entitlement of leave, conduct and
discipline, of persons appointed as employees of
aided institutions in the State:

Provided that the rights and benefits accruing
to an employee of an existing institution under the
grant-in-aid rules in force at the commencement of
this Act shall not be varied to the disadvantage of
such employee:

Provided further that every such employee
shall be entitled to opt for such terms and conditions
of service as were applicable to him immediately
before the commencement of this Act:

Provided also that, irrespective of the age of
retirement prescribed, action may be taken for
compulsory retirement of such an employee after
completion of 25 years of service or on attainment of
the age of 50 years whichever is earlier, in
accordance with the procedure as may be prescribed.

(2) Every recognized institution shall constitute a
provident fund for the benefit of its employees in

(6)

such manner and subject to such conditions as may
be prescribed and contribute to such fund and pay
interest on the deposited amount at such rate as
may be prescribed from time to time.

"29. Pay and allowance of employees.- (1) The
scales of pay and allowances except compensatory
allowances with respect to all the employees of an
aided institution shall not be less than those
prescribed for the staff belonging to similar
categories in Govt. institutions.

(2) Notwithstanding any contract to the contrary, the
salary of an employee of a recognized institution, for
any period after the commencement of this Act, shall
be paid to him by the management before the expiry
of the fifteenth day or such earlier day, as the State
Govt. may, by general or special order appoint, of
the month next following the month in respect of
which or part of which it is payable:

Provided that if at any time the State
Government deems it fit, it may prescribed a
different procedure for payment of salary &
allowances.

(3)The salary shall be paid without deductions of and
kind except those authorized by the rules made
under this Act or by any other law for the time
being in force."

The Rajasthan Non Government Educational Institutions
(Recognition, Grant-in-aid and Service Conditions etc.)
Rules, 1993 :

(7)

Section 43
of the Act empowers the State Government to

frame Rules for the purpose of carrying into effect the provisions

of the Act, accordingly, "The Rajasthan Non Government

Educational Institutions (Recognition, Grant-in-aid and Service

Conditions etc.) Rules, 1993 (hereinafter referred to as 'the

Rules of 1993') were framed. Rule 34 of the Rules of 1993

provides that the scales of pay and allowances of the staff of the

aided educational institutions shall not be less than those

prescribed by the Government for the staff of similar category in

the Government educational institutions. The term "Allowance"

include Dearness Allowance, House Rent Allowance and City

Compensatory Allowance.

In view of the provisions referred above, parity is required

to be maintained among the employees of government

institutions and the non-government educational institutions

relating to the scale of pay and allowances.

Government of Rajasthan notification dtd. 25.1.1992

The Government of Rajathan under a notification dated

25.1.1992 prescribed selection grades for its employees in the

cadre of Class-IV, ministerial and subordinate service. The

selection grades under the notification aforesaid were prescribed

to remove stagnation in service due to less opportunity for

promotion. As per the notification dated 25.1.1992 the

(8)

employees concerned were required to be awarded selection

grade on completion of 9, 18 and 27 years of service. Suffice to

mention that on application of the Act of 1989 and the Rules

framed thereunder pay-scales of all the teaching and non-

teaching staff of the non-government educational institutions

came at par with the similar category of employees working with

Government institutions.

Judgment given by Full Bench in S.R. Higher Secondary
School & Others case :

The decision of the Government of Rajathan notified under the

order dated 25.1.1992 was not applied by the non-government

educational institutions for their employees, hence, several

employees approached the Non-Government Educational

Tribunal to have a direction for the grant of selection grades as

per the notification dated 25.1.1992. The applications so

preferred came to be accepted, thus, the aided institutions

preferred petitions for writ before this Court to challenge the

order passed by the Tribunal.

The issue so agitated came to be resolved by a Full Bench

decision of this Court in
S.R. Higher Secondary School & Ors. Vs.

Rajasthan Non-Government Educational Institutions Tribunal,

Jaipur & Ors.
, reported in 2002(2) DNJ [Raj.] 613.

The Hon`ble

Full Bench in the case of
S.R. Higher Secondary School
(supra)

(9)

declared the employees of non-government educational

institutions entitled to selection scales as given to the

employees/ Teachers serving in Government institutions. While

declaring the entitlement of the employees for grant of selection

grades as per the notification dated 25.1.1992, it was also held

by the Full Bench that the selection scale being salary and once

the State Government has decided to grant aid to a non-

government educational institution, it will form a part of grant

of aid and, thus, the State Government in the eventuality of

sanctioning grant will pay the same in accordance with the

percentage prescribed to the category in which the non-

government educational institutions is placed.

In light of Full Bench judgment
referred above
, the

Government of Rajasthan granted aid to the non-government

educational institutions against the selection grades allowed to

their employees.

Rajasthan Voluntary Rural Education Service Rules, 2010

The Governor of Rajasthan while exercising powers conferred by

proviso to
Article 309
of the Constitution of India framed

"Rajasthan Voluntary Rural Education Service Rules, 2010" for

regulating appointment and other service conditions of persons

appointed in the Rajasthan Voluntary Rural Education Service.

Rule 4 of the Rules of 2010 provides procedure for appointment

(10)

in government service and Rule 5 prescribes terms and

conditions for appointment of employees in Government service.

The relevant portion of Rule 4 and Rule 5
referred above
reads

as follows :

"4. Procedure of appointment in government
service.-(1) Such regularly appointed employees in
the Non-Government Aided Educational Institutions
who are working against sanctioned and aided post
on the date of commencement of these rules and
who desire to be appointed under the Rajasthan
Voluntary Rural Education Service Rules, 2010, in
accordance with the terms and conditions mentioned
in these rules, shall submit within 15 days from the
date of publication of these rules in the official
gazette an application in Form-I, to the Secretary of
the concerned institution mentioning therein his/her
service particulars with an advance copy of the
concerned appointing authority.

"5. Terms and condition for appointment of
employees in Government Service. - The
regularly appointed existing employees in the Non-
Government Aided Educational Institutions who are
working against sanctioned aided post on the date of
commencement of these rules shall be appointed
under the Rajasthan Voluntary Rural Education
Service on the following terms and conditions,
namely:-

(i) The employee should possess the requisite

(11)

educational and professional qualification for the
respective posts as per the relevant service rules
applicable to the Government servant of similar
cadre.

(ii) The posts on which the employees shall be
appointed in the Government shall constitute a
separate dying cadre for each category of
employees.

(iii) The appointed employees shall be posted only in
the colleges/schools, as the case may be, in the rural
areas on the equivalent posts specified in column
number 2 of the Schedule. However, in case there is
no such equivalent post in the government, they
shall be appointed on other posts carrying the same
pay scale of aided posts.

(iv) The employees appointed under these rules shall
not be entitled for any promotion till they attain the
age of superannuation. However, they shall be
allowed benefit of Assured Career Progression/
Career Advancement Scheme as allowed to other
employees of the State Government. The period
from the date of their appointment on the sanctioned
and aided posts would be counted for the purpose of
grant of Assured Career Progression/Career
Advancement Scheme.

(v) The posts shall be automatically abolished as and
when the posts become vacant for any reason
whatsoever i.e. on account of
superannuation/voluntary retirement/termination of

(12)

service/death while in service/resignation of the
employee etc.

(vi) The salary of all the appointed employees shall
be fixed on the basis of the salary as drawn at the
time of appointment as per the Sixth Pay
Commission with effect from the date they join in
the government under these rules. Those who are
drawing salary in Rajasthan Civil Service (Revised
Pay Scale) Rules, 1998, Rajasthan Civil Services
(Revised Pay Scales for Government College
Teachers including Librarian and PTI rules, 1999 and
Rajasthan Civil Services Revised Pay Scales for
Government Polytechnic College Teachers, Librarians
and Physical Training Instructors Rules, 2001) shall
be allowed benefit of Rajasthan Civil Services
(Revised Pay Scale for Government College Teachers
including Librarian and PTI Rules, 2009 and
Rajasthan Civil Services Revised Pay Scales for
Government Polytechnic College Teachers, Librarians
and Physical Training Instructors rules, 2010)
respectively with effect from the date they join in the
Government after appointment under these rules.

(vii) No arrears on any account whatsoever,
(including arrears of salary, selection scale,
Assured Career Progression or Career
Advancement Scheme) shall be paid by the
State Government for the period prior to the
date of their joining in the Government after
appointment under these rules.

(emphasis supplied)

(13)

(viii) Carry forward of the balance of Privilege Leave
shall not be allowed. Employees shall be free to get
payment of encashment of balance of P.L. from the
respective grant-in-aid educational institutions.

(ix) The persons who are appointed in the
government service under these rules shall not be
eligible for pension scheme. Contributory Provident
Fund Contribution, if not deposited by the Non-
Government Aided Educational Institutions for the
period prior to the date of their joining in the
government after appointment under these rules,
shall not be paid by the State Government. They
may either continue to be members of the
Contributory Provident Fund or they may opt for the
Rajasthan Civil Service (Contributory Pension) Rules
2005. Employer's contribution towards Contributory
Provident Fund shall be paid by the Government for
the period they are in government service.

(x) The period of service in the aided institutions
shall not be counted for payment of gratuity. The
employees shall be free to obtain payment of
gratuity from the respective grant in aid educational
institution.

(xi) Each employee shall be required to execute an
undertaking, in Form-II, that he/she voluntarily
accepts all the terms and conditions of service
prescribed under these rules and agrees to serve in
the government educational institutions situated in
the rural areas till attaining the age of
superannuation in the service of Government."

(14)

The controversy involved in these petitions :

Several employees of the petitioner-Institutions opted for

appointment to Rajathan Voluntary Rural Education Service

created under the Rules of 2010. On application of the

Rajasthan Civil Services (Revised Pay) Rules, 2008 the pay of

such employees was required to be fixed in the revised pay-

scales. The Rules of 2008 were made applicable w.e.f.

01.9.2006, as such, fixation of pay was required to be made

from the date aforesaid. The fixation in the revised pay-scales

w.e.f. 01.9.2006 resulted into accrual of arrears of pay for the

employees who were inducted to Rajathan Voluntary Rural

Education Service and also to other employees of the non-

government educational institutions. The arrears of pay due to

revision of pay-scales were required to be paid by the

Government of Rajasthan in the form of grant-in-aid to the non-

government educational institutions, but under the impugned

communication dated 8.11.2011 such liability was transferred to

the non-government educational institutions. Such transfer of

liability was made in view of Clause (vii) of Rule 5 of the Rules

of 2010, which prescribes that:- "No arrears on any account

whatsoever, (including arrears of salary, selection scale, Assured

Career Progression or Career Advancement Scheme) shall be

paid by the State Government for the period prior to the date of

their joining in the Government after appointment under these

Rules."

(15)

The petitioner Institutions have given challenge to transfer

of such liability on the count that till appointment of employees

of the non-government educational institutions to Rajasthan

Voluntary Rural Education Service, the State was liable to

provide grant against salary and other allowances including

selection grades, as such, the arrears accruing to the employees

as a consequent to fixation of their pay in the revised pay-scales

should be borne by the State only.

As per learned counsel for the petitioners in the case of

S.R. Higher Secondary School
(supra), a Full Bench of this Court

after examining all relevant provisions held that once the aid is

sanctioned to a non-government educational institution, the

Sanctioning Authority is under an obligation to allow

proportionate grant of salary and the salary includes selection

grade and other allowances. In view of it, the non-disbursal of

aid on fixation of pay of the employees in the revised pay-scales

w.e.f. 01.9.2006 shall be in violation of the law
laid down by
Full

Bench by taking into consideration all the relevant provisions of

the Act of 1989 and the Rules framed thereunder.

On the other hand, it is contended by Ms. Minu Purohit,

learned counsel for the State that the respondents neither

violated the law
laid down by
this Court in S.R. Higher Secondary

(16)

School nor have transferred their liability to the petitioner under

the communication dated 8.11.2011. As a matter of fact, the

decision referred in the communication aforesaid is in

consonance with the provisions of Clause (viii) of Rule 5 of the

Rules of 2010 that provides for no payment of arrears on any

account whatsoever shall be paid to the employees by the State

Government for the period prior to the date of their joining the

Rajasthan Voluntary Rural Education Service.

In view of the rival contentions, the issue that deserves

adjudication in this petition for writ is :-

"Whether the State Government was liable to extend aid to

the non-government educational institutions against salary

including selection grades, revision of pay-scales etc.,

relating to the employees of such institutions prior to

coming into effect of the Rules of 2010 ?

If yes, then whether the State Government in light of

Clause (vii) of Rule 5 of the Rules of 2010 is right in

absolving itself from its liability to grant aid to the non-

government educational institutions as notified under the

communication dated 8.11.2011, issued by the Principal

Secretary to the Government of Rajathan, Department of

School & Sanskrit Education (Group-5), Jaipur".

(17)

Heard learned counsel for the parties.

In
S.R. Higher Secondary School & Ors. Vs. Rajathan Non-

Government Educational Institutions Tribunal & Ors.
(supra), a

Full Bench of this Court by taking into consideration relevant

provisions of the Act of 1989 and the Rules framed thereunder

examined the question that whether grant of selection scale to

government servants as per the circular dated 25.1.1992 is a

promotion to higher post or a higher pay-scale in the same post,

and if it is pay-scale, then whether the Teachers of non-

government educational institutions would also be entitled for

the same at par with the employees of the Government

institutions ? The Full Bench also examined the question that as

to whether the State is oblige to contribute grant-in-aid for the

selection scale provided under the circular dated 25.1.1992.

The Full Bench after taking into consideration the

provisions of
Section 29
of the Act of 1989 and Rule 34 of the

Rules of 1993 arrived at a definite conclusion that the employees

of aided educational institutions must be paid the same pay-scale

and allowances as the employees in Government institutions are

getting. The selection grade provided under the notification

dated 25.1.1992 is not a promotion to higher post but a higher

pay-scale on the same post, therefore, it shall also be payable

(18)

to the employees of non-government educational institutions.

The question that is having much significance in the

present controversy is regarding liability of the State

Government to provide aid to the non-government educational

institutions against salary. The Full Bench examined this issue

in lucid and held as under :-

"19. Now, it brings us to the question as to whether
the State is obliged to contribute grant-in-aid for the
selection scale provided under the circular dated
25.1.1992.
The Act
of 1989 has been enacted to
provide for better organization and development of
education in the Non-Government educational
institution in the State of Rajasthan
Section 7
of the
Act provides for grant of aid. Only a recognized
institution run by a Society registered under the

Societies Registration Act
would be given the grant in
aid, subject to such terms as may be prescribed. The
sanctioning authority may sanction and distribute aid
to a recognized institution from time to time in
accordance with the procedure as may be
prescribed. In exercise of the powers conferred by
Rule 43 of the Rules, the State Government framed
Rules regulating recognition, grant of aid and service
conditions etc. of the NGEIs. Rule 10 of the Rules
provide for general conditions governing grant-in-
aid. Rule 11 deals with procedure, for grant- in-aid.
Rule 12 is for finalization of maintenance or recurring
grant. Rule 13 is in regard to assessment of annual
recurring grant on the basis of estimated expenditure

(19)

of the current year and will be subject to adjustment
of grant payable in the next year Rule 14 deals with
approved expenditures. Rule 15 is for payment of
recurring grant. Rule 16 deals with non recurring
grant.
Section 7
of the Act reads as under :-

"Grant of aid to recognized institutions.-
(1) No aid shall be claimed by an institution as
a matter of right.

(2) Unrecognized institutions shall not be
eligible to receive any aid.

(3) Subject to such terms and conditions as
may be prescribed, the sanctioning authority
may sanction and distribute aid to recognized
institutions from time to time in accordance
with the procedure as may be prescribed.

(4) The aid may cover such part of the
expenditure of the institution as may be
prescribed.

(5) No amount out of aid given for salary of the
employees of an institution shall be used for
any other purpose.

(6) The sanctioning authority may stop, reduce
or suspend aid on breach of any of the terms
and conditions prescribed in this behalf.
(7) The amount of aid may normally be paid to
the secretary of the managing committee of an
institution but, in special circumstances and for
reasons to be recorded in writing, such amount
may be paid to any person authorized by the
Director of Education or by any other officer
empowered by him in this behalf.''

(20)

On the basis of
Section 7
it is contended by the
counsel for State that no aid can be claimed as a
matter of right. It is for the government to decided
not only whether the grant-in-aid is to be given to
recognized institution but also as to how much and
under what heads the grant is to be sanctioned to
the NGEIs.
In counter it is submitted by the counsel
for petitioners that once educational institution is
registered, it is entitled to grant- in-aid from
government as a matter of right and for this
proposition reliance was placed on the decision of

State of Maharashtra v. Manubhai Pragali Vashi
(11)
This case, in our opinion, does not assist the
petitioners in contending that they are entitled as a
matter of right to get the grant-in-aid from the State.

It was a case in which the Govt. of Maharashtra
denied grant-in-aid to the recognized private law
colleges while the same was extended to other
faculties of the private colleges. The court
emphasized upon the necessity of giving legal
education and to fulfil the obligation under Article
390A of the Constitution of providing free legal aid
and held that the faculty of law in the matter of (sic)
grant-in-aid run by private recognized colleges
cannot be discriminated on the ground of being a
professional course falling upon the economic
resources. The court emphasizing upon the necessity
of maintaining status of legal education held that
these aspects necessarily flowing from
Articles 21

and
39-A
of the Constitution were totally lost sight of
by the Government when it denied the grant-in-aid
to the recognized private law colleges as was
afforded to other faculties. The State has abdicated

(21)

the duty enjoined on it by the relevant provisions of
the Constitution as aforesaid. Accordingly, the Court
directed the Government to extend grant- in-aid
scheme to Govt. recognized private law colleges on
the same criteria on which such grants were given to
other faculties viz. Arts, Science, Commerce,
Engineering and Medicine from the Academic Year
1995.

Under Sub-section (1) of
Section 7
, educational
institutions cannot claim grant-in-aid from the
government as a matter of right i.e. to say on an
application moved by an NGEI for grant of aid, it is
not incumbent on the government to grant aid to
such an institution if reasonable ground exists for not
granting aid to such an institution. However, the
government cannot refuse grant arbitrarily or
without there being any justiciable reason. In the
present case all the petitioners have been allocated
grant-in-aid. The question really is whether once the
aid is sanctioned, the sanctioning authority has a
power to fix it exercising its own discretion or the
grant has to be made as provided under Sub-sees.
(3) and (4) of
Section 7
of the Act read with the
Rules and in the matter of quantum of grant in aid
no discretion is left with the sanctioning authority.

It is an admitted fact that the petitioners are
enjoying grant- in-aid from the government. From
the scheme of the Rules, it appear that the
assessment of annual recurring grant would be
sanctioned on the basis of estimated expenditure of
the current year, and the institutions shall be

(22)

categorized under advice of the grant-in-aid
Committee and would be allowed grant-in-aid.

20. Rule 13(2) speaks of Approved expenditure to be
arrived at according to these Rules and such other
instructions that may be issued from time to time.
Rule 13(3) speaks of categorizations of the
institutions under advise of the grant-in-aid
Committee and to be allowed grant-in-aid as :-

Category A 80% of the approved expenditure of

B 70% the previous year plus likely
C 60% annual increment of staff.

D 50%
Special Category - 90%

Rule 14(a) includes actual salary, and provident fund
contribution not exceeding 8.33% in respect of
teaching and non- teaching staff, apart from the
other approved expenditures as
laid down in
Rule 14.

"Salary" is defined in
Section 2(r)
of the Act which
means the aggregate of the emoluments of an
employee including dearness allowance or any other
allowance or relief for the time being payable to him,
but does not include compensatory allowance. The
extended definition of salary provides for aggregate
of emoluments received by the teacher which also
includes all allowances excluding the compensatory
allowance and also extended to the relief for the time
being payable to the teacher. The selection scale
given to the teacher shall certainly fall within the four
corners of the definition of "Salary". Although
Section
of the Act provides that no aid shall be claimed by
an institution as a matter of right, once it is decided

(23)

to grant aid under
Section 7(3)
of the Act, the
sanctioning authority is to sanction and distribute to
a recognized institution aid from time to time in
accordance with the procedure as may be prescribed.

Section 7(4)
of the Act provides that the aid may
cover such part of the expenditure of the institution
as may be prescribed.
Section 7(3)
read with
Section
7(4)
makes it clear that the aid which has to be
granted to a recognized institution shall cover the
estimated expenditure of the current year and the
approved expenditure as provided under Rule 14 of
the Rules. Once it is decided by the Government to
provide grant-in-aid in accordance with
Sections 7(3)

and
7(4)
of the Act, it leaves no room for the
sanctioning authority to exercise its discretion to
grant or not to grant the aid in regard to the items
covered under
Section 7(3)
and
7(4)
of the Act.
Selection scale being salary, once the State
Government had decided to grant aid to an NGEI, it
will form the part of the grant-in-aid and thus the
State Government in the eventuality of sanctioning
the grant will pay for the same in accordance with
the percentage prescribed to the category in which
the NGEIs is placed."

As per law
laid down by
Full Bench in the case aforesaid,

the selection grade being salary, shall form part of grant-in-aid

and the State Government in the eventuality of awarding grant is

required to pay the same in accordance with the percentage

prescribed. The State Government, thus, was settled with a

liability to sanction and award proportionate aid for grant of

(24)

salary to the non-government educational institutions receiving

aid.

A deviation from the obligation to provide aid to the non-

government educational institutions against salary of the

employees is sought to be made under the impugned

communication dated 8.11.2011. Suffice to mention that the

deviation sought to be made refers for payment of arrears from

01.9.2006 onwards. The deviation is founded on Clause (vii) of

Rule 5 of the Rules of 2010. If the Rules of 2010 would have not

been introduced, the State Government would have released the

grant including arrears of salary for the period commencing from

01.9.2006 onwards. Clause (vii) of Rule 5 of the Rules of 2010

as already stated mentions that no arrears on any account

whatsoever (including arrears of salary, selection scale, Assured

Career Progression or Career Advancement Scheme) shall be

paid by the State Government for the period prior to the date of

joining by the employee concern to the State Government

Voluntary Education Service. The provision as a matter of fact is

a condition for appointment of employees to the service created

under the Rules of 2010. The Rules clearly indicates the purpose

and object i.e. to absorb employees of non-government

educational institutions working against aided and sanctioned

posts in Government employment. The service so created is

having only one mode of appointment, that is taking over of

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employees from non-government educational institutions

working against the sanctioned and aided posts and further the

entire cadre created is a dying one. While giving appointment to

the service, an undertaking was also sought from teach of the

employees in consonance to Clause (vii) of Rule 5 of the Rules of

2010.
Clause (vii) that restricts him to claim arrears from

Government of Rajasthan. It, however, does not bar the

employees to claim the same from the educational institutions

where they were working prior to appointment under the Rules

of 2010. The resultant is that Clause (vii) transfers liability of the

State Government to the institution concern to pay complete

salary to such employees from 01.9.2006 onwards. This liability

otherwise was of the State Government by force of the

provisions of the Act of 1989 as discussed and interpreted by Full

Court in
S.R. Higher Secondary School
(supra). As a matter of

fact, by Clause (vii) of Rule 5 of the Rules of 2010 a mode is

adopted by the State Government to escape itself from its

statutory liability to award grant to the non-government

educational institutions while making payment of arrears of

salary to the employees.

As already stated, Clause (vii) of Rule 5 is a condition for

employees for not claiming arrears from the State Government

and that is having no concern with the non-government

educational institutions, where the employees concern were

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earlier working. This condition puts a restriction upon the

employees for not claiming arrears of pay from the State

Government but it in no manner prohibits them to claim the

same from the non-government educational institutions,

meaning thereby, the non-government educational institutions

where the employees concern were earlier working are required

to pay all arrears to such employees. The non-government

educational institutions, however, as a matter of fact in view of

the provisions of the Act of 1989 and the Rules framed

thereunder and also in view of the law
laid down by
Full Bench of

this Court in the case of
S.R. Higher Secondary School
(supra)

had a right to receive aid against salary of the employees

working against sanctioned and aided posts till absorption/

appointment of such employees to a service created under the

Rules of 2010. In the event of claim, such arrears by the

employees, the non-government educational institutions, thus,

can certainly claim for grant of aid from the State Government.

Pertinent to note that the Clause (vii) of Rule 5 of the Rules of

2010 nowhere restricts the non-government educational

institutions to have such aid for making payment of salary to its

employees, who were subsequently taken on State roll under the

Rajasthan Voluntary Rural Education Service created under the

Rules of 2010. The Government of Rajathan by its decision

circulated under the impugned communication dated 8.11.2011,

as a matter of fact, has intended to strip non-government

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educational institutions from their valuable right to have grant-

in-aid. No such administrative decision could have been taken to

take off the rights allready accrued. It is well settled that even

by application of Rule with retrospective effect the rights already

vested/accrued cannot be taken away.

Hon`ble the Supreme

Court in
State of Gujarat Vs. Raman Lal Keshav Lal Soni
,

reported in 1983 Lab. I.C. 391 while dealing with an eventuality

where a vested right was taken away by making amendment in

Rules with retrospective effect held as under :-

"Now in 1978 before the
Amending Act
was
passed thanks to the provisions of the
principle Act of 1961 the ex-municipal
employees who had been allocated to the
panchayat service as Secretaries Officer
and servants of Gram and Nagar Panchayats,
had achieved the status of government
servants. Their status as government
servants could not be extinguished so long
as the posts were not abolished and their
services were not terminated in accordance
with the provisions of
Article 311
of the
Constitution. Nor was it permissible to single
them out for differential treatment. That
would offend
Article 14
of the Constitution. An
attempt was made to justify the purported
differentiation on the basis of history and
ancestry as it were. It was said that Talatis
and Kotwals who became secretaries, officers
and servants of Gram and Nagar Panchayats

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were government servants, even to start with,
while municipal employees who became
such secretaries, officers and servants of
Gram and Nagar Panchayats were not. Each
carried the mark or the 'brand' of his origin
and a classification on the basis of the source
from which they came into the service, it was
claimed, was permissible. We are clear that
it is not. Once they had joined the common
stream of service to perform the same
duties, it is clearly not permissible to
make any classification on the basis of their
origin. Such a classification would be
unreasonable and entirely irrelevant to the
object sought to be achieved. It is to
navigate around these two obstacles of

Article 311
and
Article 14
that the

Amending Act
is sought to be made
retrospective, to bring about an artificial
situation as if the erstwhile municipal
employees never became members of a
service under the State. Can a law be made
to destroy today's accrued constitutional
rights by artificially reverting to a situation
which existed 17 years ago ? No.

The legislation is pure and simple self-
deceptive if we may use such an expression
with reference to a legislature made law. The
legislature is undoubtedly competent to
legislate with retrospective effect to take
away or impair any vested right acquired
under existing laws but since the laws are

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made under a written Constitution and have
to conform to the dos and don'ts of the
Constitution, neither prospective nor
retrospective laws can be made so to
contravene fundamental rights. The law
must satisfy the requirements of the
Constitution today taking into account the
accrued or acquired rights of the parties
today. The law cannot say 20 years ago the
parties had no rights, therefore, the
requirements of the Constitution will be
satisfied if the law is dated back by 20 years.

We are concerned with today's rights and
not yesterday's. A legislature cannot

legislate today with reference to a situation
that obtained 20 years ago and ignore the
march of events and the constitutional
rights accrued in the course of the 20
years. That would be most arbitrary,
unreasonable and a negation of
history.......Today's equals cannot be made
unequal by saying that they were unequal
20 years ago and we will restore that position
by making a law today and making it
retrospective. Constitutional rights,
constitutional obligations and constitutional
consequences cannot be tampered with that
way. A law which if made today would be
plainly invalid as offending constitutional
provisions in the context of the existing
situation cannot become valid by being
made retrospective. Past virtue
(constitutional) cannot be made to wipe

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out present vice (constitutional) by making
retrospective laws. We are, therefore, firmly
of the view that the
Gujarat Panchayats
(Third Amendment) Act
1978 is
unconstitutional as it offends
Articles 311
and
and is arbitrary and unreasonable."

In the case of R.S. Ajara and Ors. Vs. State of Rajathan

and Ors. (1997(3) SCC 641) and in Ex.Capt.
K.C. Arora and Anr.

Vs. State of Haryana and Ors. (AIR 1987 SC 1858), the Hon`ble

Apex Court reiterated the law laid down in the case of
State of

Gujarat Vs. Raman Lal Keshav Lal Soni
(supra) by holding that a

benefit that has accrued could not have been taken away by

introducing amendment in the Rules retrospectively. The

mandate of the judgments referred is that no statutory rule or

administrative order can whittle down or destroy any right which

has become crystallized and that effects or impairs vested rights.

In the case in hand, as already stated earlier Clause (vii) of

Rule 5 of the Rules of 2010 is not having application upon the

non-government educational institutions like the petitioners and

only by an administrative decision, circulated under the

communication dated 8.11.2011 a valuable right of receiving

proportionate aid under the Act of 1989, the Rules framed

thereunder and as per the law
laid down in
the case of
S.R.

Higher Secondary School
(supra) has been taken away. Such

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withdrawal of accrued right is apparently bad in view of the

discussion made above.

For the sake of arguments even it is assumed that by

necessary implication the Clause (vii) of Rule 5 of the Rules of

2010 restricts the non-government educational institutions like

the petitioners to have aid against salary, then such restriction

too is not valid in view of the authoritative pronouncement of the

Hon`ble Supreme Court in the cases
referred above
. The Rule

concerned, therefore, is required to be read in consonance with

the settled proposition of law, as such, irrespective of Clause (vii)

of Rule 5 of the Rules of 2010 the Government of Rajathan is

statutorily abide to sanction and award aid to the petitioner

institutions against the salary including revision of pay-scale,

grant of selection grades etc., w.e.f. 01.9.2006 onwards till the

date of appointment of the employee concern to Rajathan

Voluntary Rural Education Service crated under the Rules of

2010.

The petitions for writ, therefore, deserves acceptance.

Accordingly, the same are allowed. The decision of the

Government of Rajasthan under the communication dated

8.11.2011 for transferring liability to make payment of arrears

relating to payment of pay, revision of pay, grant of selection

grade, career progression or career advancement scheme solely

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upon the non-government educational institutions is declared

illegal. The Government of Rajathan is directed to sanction and

award aid to the petitioners non-government educational

institutions to make payment of arrears to their employees

accruing as a consequent to fixation of their pay in the revised

pay-scales under the Pay-Scale Rules, 2008 w.e.f. 01.9.2006

onwards till the date of their appointment to Rajathan Voluntary

Rural Education Service created under the Rules of 2010.

No order to cost.

[GOVIND MATHUR], J.

Sanjay